An introduction to the legal issues
First, let’s be clear. Unlike other psychologists in this arena who pretend to be lawyers and make all sorts of pronouncements at professional conferences about what is and what is not legal, I am not a lawyer and don’t pretend to be one. Take anything a non-lawyer has to say with a grain of salt and consult with your own legal counsel before acting on anything you read.
But I see the main legal issues as being:
- Are any laws being broken?
- Is the practitioner practicing within the letter and spirit of their licensing laws?
- How are legal issues in this arena to be resolved?
Remember that this article refers to e-therapy as defined earlier in this series. This article is not speaking about advice-giving online, or online psychotherapy. I am talking about e-therapy only.
Are any laws being broken?
There are dozens of laws which apply to any business in any given state, or within any given country. Given the international nature of the Internet, we must not confine our examination of legal issues to only those affecting U.S. residents. In fact, to do so is short-sighted and narcissistic.
Laws pertaining to fraud and representation are likely the most relevant to this discussion. These laws are ostensibly created to protect consumers from individuals who are looking to make money for little or nothing in return. So in order to practice, broadly, within the scope of the law, a professional must (1) portray the types of services they are offering as accurately as possible; (2) portray themselves as accurately as possible (in terms of professional education, training, experience, and credentials); and (3) deliver the services as advertised. Failure to meet these three minimum basic requirements would be unwise in the practice of e-therapy.
Make sure clients are aware of what types of services you are providing, and how they differ from other types of services (e.g., e-therapy versus traditional face-to-face psychotherapy). Have them sign a statement of their rights and consent to treatment, which includes this understanding spelled out.
It is up to every individual who wishes to practice e-therapy to become familiar with their state’s or country’s laws in these areas (these are not solely the licensing laws).
Is the practitioner practicing within the letter and spirit of their licensing laws?
This is an issue of contentious debate. Some states and countries are going to take a very protective stance and attitude regarding their licensing laws, laws which in some cases have been decades in the making. They are going to want to add the condition or interpret their licensing laws in a very strict and conservative manner. Namely, that a therapist cannot practice e-therapy online on clients who do not reside in the same state. And that’s a shame, because it means that for the states or countries which do this, they are going to be restricting the businesses from within that state or country from competing in a global market. And as some countries have learned, failure to understand the need to compete in a global market means they are resigned to sitting on the sidelines and watching.
Licensing laws in most areas restrict the practice of psychotherapy, not e-therapy. Some states go to great lengths (the California statute is one) trying to define what exactly the practice of psychotherapy is, but fails to do so. It fails because the definition set forth in the law is so broad as to include barbers, bartenders, and anyone else who happens to listen to other people’s problems as a part of the way they make their living in clear violation of the law. That is the problem when a law tries to protect a profession (as the psychology licensure statute of California does) rather than to protect the consumer. It is, unfortunately, a common failure.
So how can an e-therapist be assured they are not violating such laws either in letter or spirit? Damn near impossible, as anyone who has had to deal with the pseudo-government licensing boards has learned. These boards have been granted a great deal of discretionary power over policing and enforcing these laws by legislatures. They answer to virtually no one. The ironic part is that the American Psychological Association, among other professional associations, was instrumental in ensuring legislatures passed these laws during the 1970s and 1980s. It is like a monster which has grown out of control. In many of these boards’ eyes, a professional is guilty until proven innocent.
You can take reasonable steps and precautions, however:
- Call your state or country’s licensing board of psychology and ask them to get their official stance about online mental health interventions.
- Ask for a written copy of their statement to be mailed to you, just in case.
- See only clients online who live within your state.
- If you see clients who do not live in your state, think carefully about how you would defend your actions in a court of law or before the licensing board.
Call the work you do online coaching or e-therapy may help, but it may not be sufficient or necessary protection in and of itself. What you do must match what you call what you’re doing. So if you’re doing something which looks like psychotherapy (not e-therapy), but you call it e-therapy, you can still get in trouble for it.
How are legal issues in this arena to be resolved?
Some people mistakenly believe that if a licensing board or legislature passes a law, that is all that is said to be on that issue. Nothing is further from the truth. Laws can be held to be unconstitutional by courts, or how the law will be interpreted (often times limiting the scope and breadth of the original all-encompassing law) is up the courts. The courts are where issues in this area will be resolved.
A few things to note, here, however. One of the little-known secrets that licensing boards keep is that they do a pretty horrendous job pro-actively policing their state’s or country’s professionals covered by their board. Most complaints which a board hears are brought to them by disgruntled clients or occasionally, a colleague. This is to an e-therapist’s benefit, in that if you act in an ethical manner and work toward ensuring the services you do provide online meet, as much as possible, the intent of the law, you will be better off than someone flouting the law or looking to defraud consumers.
Even when complaints are brought up, one only needs to look at the statistics to see how few doctors are dis-barred or how many experienced therapists lose their licensure when brought before the board. In most areas, it’s less than 1%.
This is not to say that you should risk or chance such a meeting. You should not. You should do everything within your power to ensure that you are working within the law to the best of your ability and consult with a lawyer for specific advice in this area.
Facts in Evidence
To test a psychology board’s resolve in this matter, I sent a letter of complaint to the Medical Board of California, Board of Psychology, Central Complaint Unit regarding a now-defunct Web site which was advertising itself as offering psychotherapy services online, but in-truth, was offering nothing more than psychoeducational advice services. I have nothing against psychoeducational advice services, and in fact I believe that they can be very useful and valuable to people in certain situations. I do, however, object to false advertising.
In October, 1999, I received a final resolution letter from the Board on this matter. I quote from the letter:
In considering your complaint, the Board noted that you allege this facility is advertising online counseling and psychotherapy services. The Board has advised this office that they have no authority with the internet [sic] and are unable to pursue your concerns. [Emphasis mine.]
Given this information, we have closed our records in this matter. You may want to contact the Attorney General’s Office at the Federal level to see if they might be able to address your concerns, however, we are unaware of any single agency who does have jurisdiction.
This letter pretty clearly states that when it comes to matters of the Internet, at least one state board in the U.S. recognizes it has no authority over matters conducted on it. The company in question as referenced in this letter was a California business. This is a great sign for both the consumer and the professional — these matters must be resolved on either (a) a higher national or international governmental or industry level or (b) within each commercial enterprise itself (since bad press could sink a company’s ability to transact business).
This is one piece of evidence which illustrates that, against the prevailing conventional wisdom many seem to have, it is not a given that licensing or traditional credentialing authorities within a country or state will take action or believe they automatically have jurisdiction in these kinds of disputes.
To date, there have been no lawsuits brought up in any state (that I am currently aware of) which address e-therapy specifically. As a voter, you have the right to lobby your legislature to change the laws to ensure they protect this type of professional service, and do not limit to only residents of their own state. Legislatures which do limit such online services are only shooting themselves in the foot. Other states, or even other countries, will become the e-therapy capitals of the world, catering to millions of Americans every year.
This is not a prediction, this is a simple fact of business and economics on the Internet. Markets which have a great demand for them do not shut down, they simply move. Any legislature or licensing board which thinks it can legislate economic forces with restrictions on practice has a limited understanding of economics and the new global economy. It may be your task to try and educate them so they make the right decisions in this area. If you don’t, nobody else will.
For more information about e-therapy, I suggest reading the other essays in the Best Practices in e-Therapy series.
This article has been updated from the original version, which was originally published here on October 31, 1999.